Page v. Butler

• Decision Date: 31 October 1851
• Citation: 15 Mo. 73
• Court: Missouri Supreme Court
• Parties: PAGE & BACON v. BUTLER ET AL.

15 Mo. 73

PAGE & BACON

v.BUTLER ET AL.

Supreme Court of Missouri.

October Term, 1851.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

The appellants filed their motion in the Circuit Court for judgment on a forthcoming bond, made by the respondents to the sheriff on an execution out of the Circuit Court, in favor of Page & Bacon, against Butler. On the hearing of the motion, appellants read the execution, sheriff's return and the bond; from which it appeared that execution was dated 15th May, 1850, and on the 22nd June succeeding, was levied on thirty casks of bacon; and on the same day the bond, with Butler as principal and Lackland and Kennett as securities, was given. The sheriff's return further shows, that on the 2nd of November, 1850, Kennett, Dix and Von Tagen claimed the property levied on as their property, and demanded a trial by jury on their claim. Notice, on the same day, was given to the plaintiffs' attorneys, and, on the 13th of November, 1850, a jury was summoned to try the right, and the jury found in favor of the claim. The plaintiffs refused to attend this trial. The sheriff then returned nulla bona. The plaintiffs proved the value of the thirty casks of bacon to be $1,200. Such was the plaintiffs' case on the motion. No defense was made by or in behalf of Butler. Kennett and Lackland, who resisted the giving of judgment against them, then proved, that at the time of the supposed levy, the bacon was on a steamboat, about to depart for New Orleans; that Kennett, at the time, gave the sheriff notice that the bacon belonged to his house. He agreed, however, to give the forthcoming bond, rather than have the bacon removed from the boat-- the sheriff giving it, as his opinion, that Kennett's rights would not be prejudiced thereby. Kennett and Lackland further proved to the court, that at the time of the levy and giving the bond, the bacon, did, in fact, belong to Kennett, Dix & Co., they having advanced $2,000, and shipped it in their own name to New Orleans. They also read the proceedings and verdict of the sheriff's jury. The appellants objected to the evidence as irrelevant, incompetent, &c. They also specially objected to the testimony of Butler, as incompetent inasmuch as he was party to the bond and record. No other points of law were made by the appellants on the hearing. The court overruled the motion, to which the appellants excepted. A motion for a re-hearing was made, for the reasons, that the judgment was, 1st, against law; 2nd, against evidence; 3rd, against the weight of evidence; 4th, that incompetent evidence was admitted. The court overruled the motion and appellants excepted.

KNOX & KELLOGG, for Appellants. The plaintiffs contend that the bond was forfeited by the failure to deliver the property on the day appointed for delivery: Rev. Stat. 482; 1 Howard, 347. That the bond, after forfeiture, was a quasi judgment, and that consequently the whole evidence of what took place, after the bond was forfeited, was inadmissible, and should have been excluded by the court: 1 Wash. 162; 3 Munf. 417, Lusk v. Ramsey; 2 Munf. 153,Cook v. Piles. Such a bond is substituted for the original judgment, and suspends, and when forfeited would be a satisfaction, unless such consequence be prevented by the provisions of the statute. 3 Munf. 454; 2 Munf. 153; Walker, 175, 251, 267. The securities in the bond are estopped from denying that the property, for which the bond was given, was the property of the said S. O. Butler. Dezell v. Odell, 3 Hill, 215; Smith v. Cudworth, 24 Pick. 196; 15 Pick. 40, Bursley v. Hamilton; 13 Pick. 139, Robinson v. Mansfield; 12 Pick. 561, Jones v. Church; 9 Mo. R. 156, Dickson v. Anderson & Thompson. All the parties to a deed are estopped from denying the recitals therein. The plaintiffs further contend, that the only evidence, admissible on the part of the defendants, on the hearing of the motion, was evidence, proving, or tending to prove that the bond was originally void, in that they had complied with the conditions, or had satisfied the bond. That some of the evidence offered, tended to prove either of these facts, and should, therefore, have been excluded by this court. Rev. Code, 482.

FIELD, for Respondents. 1. Butler was a competent witness for his co-defendants; because, making no defense and consenting that judgment might be entered against himself, he had no interest in the proceedings against the others: 1 Greenl. Ev. § 355; Steele v. Boyd, 6 Leigh's R. 517. Besides, the objection to a witness on the score of interest, is expressly taken away by the then Practice act, art. 25, § 1. 2. No other point of law than the one above considered, properly arises on the record; for no other proposition of law was presented by the appellants, on the hearing in the court below. 3. The proceedings before the sheriff's jury were perfectly regular, and constituted a conclusive bar to the motion--Rev Stat. 1845, title Execution, § 21 et seq.; and as to the effect of the finding of the jury on claim of property, upon the forthcoming bond, see 7 Blackf. 43, exactly in point. If it be objected, that plaintiffs had no legal notice of the trial, the answer is, that the sheriff in his return (which was part of the plaintiffs' evidence) says that notice was given. The notice must be taken to be regular. Besides, it was not the claimant's business to give notice to the creditors. If the sheriff has, in fact, neglected his duty in this respect, he may be liable to the creditor, but the rights of the claimant cannot be affected by the default of the sheriff. If it be objected that the formal claim of property was made and the trial had after the forfeiture of the bond, it is answered, that the statute has affixed no such limitation to the claim; and such limitation, by judicial construction, would be absurd; for by the statute ten days' notice of the trial must be given to the creditors, and in all cases, a forfeiture of the bond may be had in ten days from the levy. 4. The proof of property in Kennett, Dix & Co., made before the Circuit Court, was a good defense to the motion. In Miller v. Ashton, 7 Blackf. 29, it was decided...